Kern County's Ban on Sewage Sludge Land Application

Kern County's Ban on Sewage Sludge Land Application was passed via popular referendum in 2006. It banned the application of treated human and industrial sewage sludge as fertilizer on unincorporated farmland in Kern County, CA. At the time, about one-third of California's sludge was applied to land in Kern County, "mostly from Southern California, to grow crops fed to dairy cows." The ballot initiative to ban sludge application was spearheaded by Democratic CA State Senator Dean Florez. The ballot measure was challenged in court before and after it was voted upon. As of 2011, it never took effect and it was still being litigated.

Sludge Application in Kern County
In the years leading up to the 2006 ballot initiative, one third of California's sewage sludge was applied to land in Kern County. Orange County, Los Angeles County, Oxnard and Ventura all sent their sludge to Kern County. Los Angeles applied most of its sewage sludge (750 tons per day) on a 4,688 acre Kern County farm, Green Acres owned by Los Angeles but managed by a company called Responsible Biosolids Management. Green Acres grows alfalfa, wheat, and corn for use as dairy cattle feed. Orange County applied about one third of its sludge to a privately owned Kern County farm, Honeybucket Farm.

When faced with no longer being allowed to send sludge to Kern County, Los Angeles lined up farmers in Arizona to receive its sludge. They projected an increased cost to taxpayers from $7 million per year to as much as $21 million per year. Orange County, which already sent some sludge to Arizona prior to the ban, planned to send even more once it was unable to dispose of its sludge in Kern County. They projected increases costs of $700,000 per year.

Following the ballot initiative, the ban never actually took effect due to legal challenges described below, allowing the sludge application to continue.

The Ballot Initiative
On June 6, 2006, the Kern County ballot initiative to ban sludge application passed with 85 percent of the vote. The ban was to take effect in six months. After the vote, "California Senator Dean Florez, who led the campaign to ban L.A. biosolids, said the Kern vote was common sense." He said, "Voters here came to the correct conclusion that if sludge was good for people, Southern California communities wouldn't be clamoring to send it north to us."

Text of Measure E, the Keep Kern Clean Ordinance of 2006
The language of the land application ban is as follows:
 * "BIOSOLIDS LAND APPLICATION BAN: INITIATIVE ORDINANCE. Prohibits the land application of biosolids in the unincorporated area of Kern County. “Biosolids” are treated solid, semi-solid or liquid residue generated during the treatment of sewage in a wastewater treatment facility. Land application of any materials containing biosolids is prohibited immediately. In addition,the ban prohibits the discharge of biosolids to surface waters and surface water drainage courses and prohibits leaching or other introduction of biosolids to groundwater aquifers. Biosolids, packaged for routine retail sales through regular retail outlets, which are primarily used for residential purposes in limited amounts are permissible and are excluded from the ban.


 * "Existing permit holders have six months to discontinue the land application of biosolids. An appeal procedure is established to request an extension of time to discontinue such application if special circumstances exist which create a hardship for those who have installed or constructed permanent improvements relating to the land application of biosolids. The final step of the appeal process is a hearing before the Kern County Board of Supervisors, which may grant an extension not to exceed six months.


 * "Violation of the ordinance is a misdemeanor punishable by a fine of not more than $500 or not more than six months in prison, or both, for each day of violation. An offender may also be required to pay for cleanup and disposal costs."

Bonilla v. Barnett
Before the June 2006 election in which the ballot measure was voted upon, two Spanish-speaking men, Jose S. Bonilla and Rafael C. Rivera, filed a lawsuit to keep the measure off the ballot, alleging that they "had their civil rights violated because the signature-gathering petition was printed only in English." Both men were truck drivers whose jobs were hauling sludge. Their attorney, Roger Parkinson of Borton, Petrini & Conron LLP, said that Bonilla and Rivera would lose their jobs if the measure passed.

In a June 7 hearing, the judge refused to remove the measure from the ballot but agreed that the county had some questions to answer to defend its actions.

City of Los Angeles, et al. v. County of Kern

 * "In 2006, Kern County voters approved Measure E, which prohibits the spraying or spreading of sewage sludge onto land in unincorporated areas. The City of Los Angeles, Orange County Sanitation Districts, the California Association of Sanitation Agencies, trucking companies and a few Kern County landowners sued to block the measure's implementation. They contended that Measure E violated the commerce and equalprotection clauses of the constitution. The plaintiffs also argued that the measure was preempted by the federal Clean Water Act, the California Integrated Waste Management Act and state water law."

The ban, which passed on June 6, 2006, was to take effect in six months, December 6, 2006.

Initial District Court Ruling
On November 20, 2006, Judge Gary Allen Feess of the U.S. District Court for the Central District of California ruled to "temporarily block Kern County from enforcing a ban on the land application of biosolids from urban municipalities until the court rules on the merits of the case."


 * "Ruling in, Feess granted the municipalities' request for a preliminary injunction against Kern County's ban on the land application of sewage sludge, saying the voter-approved ban "is likely to impermissibly discriminate against interstate commerce because it was enacted in part for the purpose of protecting the reputation of Kern's agricultural products and specifically to exclude out-of-county biosolid commerce."


 * "Feess also says in his Nov. 20 ruling that the country's ban is likely preempted by state law because it thwarts recycling activities promoted by a state waste law, and it likely constitutes an invalid exercise of police power "because it cannot reasonably be said to accommodate the regional interest in safe, cost-effective management of biosolids."


 * "While the ruling may have limited legal weight since it was only on a motion for preliminary injunction, attorneys say it is still significant because the county is likely to appeal the ruling to the U.S. Court of Appeals for the 9th Circuit, which could provide the first appellate ruling on the constitutional issue. Up to now, federal courts have generally overturned land application bans on narrow, state-specific grounds.


 * "In the suit, the city of Los Angeles, Los Angeles County, Orange County, and others allege that a Kern County ban on the land application of biosolids in unincorporated areas of the county violates the Commerce Clause of the Constitution, as well as state and federal laws governing biosolids use. Other groups challenging the ban include trucking companies that transport the biosolids, farms that apply the biosolids as fertilizer and the California Association of Sanitation Agencies, which represents wastewater treatment utilities throughout the state."

Ninth Circuit Court of Appeals Ruling
The case then went to the Ninth U.S. Circuit Court of Appeals, which ruled in favor of Kern County on September 9, 2009.


 * "The Ninth U.S. Circuit Court of Appeals overturned a federal District Court judge's ruling that the initiative violated the United Slates constitution's commerce clause.


 * "The unanimous three-judge appellate panel held that the alleged harm caused by the initiative is not even "marginally related" to the purpose of the commerce clause. The suit, which was filed by Southern California sanitation agencies, sludge trucking companies and Kern County landowners, was returned to the District Court for the Central District of California for further consideration...


 * "The Ninth Circuit directed Judge Feess to reconsider his conclusion that the stale waste management law preempts Measure E. "[W]e are left with a complex question of state law preemption. Because our dismissal of the federal constitutional claim may materially alter the district court's decision to exercise supplemental jurisdiction over the preemption claim, we vacate its judgment and remand the state law claim for reconsideration," the court concluded."

At this point, Kern County was allowed to enforce the sludge ban, but opted to wait until the legal battle was concluded to do so.

Case Dismissed
In 2010, the Supreme Court refused to hear the case, leaving in place a win for Kern County. When the case returned to the U.S. District Court, the judge (Feess) dismissed the case.

Back in Court: 2011
In January 2011, Kern County announced it would begin the six month process of enforcing its sludge ban. The implementation of the ban, which would go into effect in October 2011 if lawsuits did not stop it, prompted yet another round in court.

Tulare County Superior Court
On May 26, 2011, the Tulare County Superior Court judge Lloyd L. Hicks delivered a "split decision" and set the next court date for June 9, 2011. Hicks refused to dismiss the case, as Kern County had requested. However, he did dismiss one of the five counts against Measure E ("the argument that the ban unfairly restricts the transport of sludge from outside of Kern County while allowing cities and the county to spread treated sludge locally"). The case is expected to go to the appellate court, and the heart of the fight will be over Los Angeles' claims that "Measure E is trumped by the recycling mandates in the California Integrated Waste Management Act and that enforcement of the measure is beyond Kern County's governmental powers."

On June 8, 2011, Judge Hicks "issued a tentative ruling Wednesday that Los Angeles sanitation districts and haulers are likely to win their case against Kern County and that the city and county of Los Angeles would be seriously harmed if Measure E were allowed to take effect." The next day, June 9, Judge Hicks decided to once again put the sludge ban's implementation on hold, finding that "Kern County's law was likely to lose in a full court battle and that the costs Los Angeles would suffer from not being able to spread its treated human and industrial waste on Kern County farmland outweighed any perceived harm from flies, odors or leeching of the sludge into groundwater."

5th District Court of Appeal in Fresno
After its initial loss, Kern County decided to appeal the case to the 5th District Court of Appeal in Fresno.

Related SourceWatch articles

 * Biosolids
 * Sewage sludge
 * Food Rights Network
 * Kern County, CA

External resources

 * Measure E, also known as the "Keep Kern Clean Ordinance of 2006."

External articles
2011:
 * James Burger, "County to appeal sludge-ban injunction," The Bakersfield Californian, June 21, 2011.
 * James Burger, "Measure E sludge ban on hold again; battle to continue," The Bakersfield Californian, June 9, 2011.
 * James Burger, "Judge likely to freeze Kern's sludge law," The Bakersfield Californian, June 8, 2011.
 * "Judge: Kern's sewage ban probably invalid," KGET, June 8, 2011.
 * "Judge sides with LA in latest action on state sludge lawsuit," BakersfieldNow.com, June 8, 2011.
 * "City of L.A., Kern County battle over human waste disposal," Los Angeles Times, June 7, 2011.
 * James Burger, "Kern, Southern Cal both win points in sludge case," The Bakersfield Californian, May 26, 2011.
 * Carol Ferguson, "LA vs. Kern: Sludge fight still slogging through courts," BakersfieldNow.com, March 4, 2011.
 * James Burger, "County to enforce sludge ban," The Bakersfield Californian, January 18, 2011.

2010:
 * James Burger, "Kern wins again as U.S. Supreme Court refuses to hear sludge case," The Bakersfield Californian, June 1, 2011.

2009:
 * James Burger, "Kern wins another round in sludge lawsuit," The Bakersfield Californian, September 10, 2009.

2006:
 * Gretchen Wenner, "Sludge: Judge sides with Kern for now," The Bakersfield Californian, April 8, 2006.
 * Gretchen Wenner, "Lawsuit to keep on truckin' in Fresno today," The Bakersfield Californian, April 7, 2006.
 * Gretchen Wenner, "Civil rights suit aims to block sludge initiative," The Bakersfield Californian, April 5, 2006.